TaxTMI 
TaxTMI 
2008 (4) TMI 50
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.... Appeal No.25 arises out of the judgment of the Tribunal in Appeal No.68, which in turn arises out of the order of the Commissioner in Appeal No.544 dated 27.9.2002, whereby the learned Commissioner has reduced the penalty imposed under Section 77 to the maximum permissible limit, while the penalty imposed under Section 76 to the extent of amount of tax being Rs.39,250 was upheld. The Tribunal in Appeal No.68 reduced this penalty to 10% of the duty demanded. 3. Appeal No.4 arises out of the judgment of the Tribunal passed in Appeal No.69, which in turn arises out of the order of the learned Commissioner dated 19.6.2002, whereby the learned Commissioner has dismissed the appeal for default in complying with the requirement of pre-deposit.&n....
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.... finding in this regard, and on the face of language of Section 35F, there is no escape from the conclusion, that the appeal was rightly dismissed by the learned Commissioner, and the learned Tribunal could not entertain the appeal on merits. Accordingly, this question is answered against the assessee, and in favour of the Revenue. 6. At this stage, learned counsel for the assessee submits, that since the learned Tribunal has already allowed the appeal, and since this Court is not inclined to uphold that order, the assessee may be granted reasonable time, even now, to comply with the requirement of predeposit, and the order dismissing the appeal, passed by the Commissioner be set aside, and the Commissioner be directed to decide the ....
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....uthority below, have any authority to impose a penalty, which is even less than the amount permissible to be imposed by Section 76. Learned counsel for the assessee referred to the provisions of Section 80, and one judgment of Hon'ble the Supreme Court, in Dilip N. Shroff Vs. Joint Commissioner of Income Tax, reported in (2007) 6 SCC-329, and one judgment of Division Bench of this Court, in Union of India through Commissioner of Central Excise Vs. Dial & Travel, reported in (2007) 208 CTR Reports-170, and contended, that when Section 80 provides that penalty shall not be imposable for any failures referred in Sections 76, 77 and 78, if the assessee proves, that there was reasonable cause for the said failure, which reasonably implies, t....
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....er in original, and that of the learned Commissioner shows, that under Section 76 a penalty in both the cases has been imposed equal to the amount of tax, while according to language of Section 76, the minimum and maximum penalties are prescribed, with the upper ceiling of being equal to the amount of tax. From perusal of the orders, it further transpires, that the authorities below the Tribunal, have not at all applied their mind, on the question, as to whether the minimum penalty was required to be imposed, or maximum penalty was required to be imposed. When the statute provides discretion, to be available within the two upper and lower limits, the discretion was required to be exercised. It is not always necessary, that maximum penalty s....